[1988] OLRB Rep. June 565
2638-87-JD Copper Cliff Mechanical Contractors Ltd., Complainant v. The Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America Local 1425, The Ironworkers District Council and International Association of Bridge, Structural and Ornamental Ironworkers, Local 786, Respondents
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members D. A. MacDonald and R. R. Montague.
APPEARANCES: Robin B. Cumine for the complainant; N. L. Jesin and E. Ryan for The Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America Local 1425 ("Millwrights"); S. B. D. Wahl, J. Phair and D. Girard for The Ironworkers District Council and International Association of Bridge, Structural and Ornamental Ironworkers, Local 786 ("Ironworkers").
DECISION OF THE BOARD; June 29, 1988
This is a jurisdictional dispute filed under section 91 of the Labour Relations Act by the complainant, Copper Cliff Mechanical Contractors Ltd. ("Copper Cliff'). The work in dispute was assigned to the Ironworkers and is the subject of a grievance filed by the Millwrights against Copper Cliff.
It is the position of the Millwrights that the Board is deprived of jurisdiction to inquire into this complaint because of section 91(14) of the Act which provides:
The Board shall not inquire into a complaint made by a trade union, council of trade unions, employer or employers' organization that has entered into a collective agreement that contains a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them with respect to any difference as to work assignment that can be resolved under the collective agreement, and such trade union, council of trade unions, employer or employers' organization shall do or abstain from doing anything required of it by the decision of such tribunal.
In the alternative, counsel for the Millwrights asks the Board to refuse to exercise its discretion under section 91(1) and 91(13) of the Act to hear this complaint.
- The relevant provisions in the collective agreements binding Copper Cliff and the Millwrights and Copper Cliff and the Ironworkers are contained in article 14(b) of the Millwrights agreement and article 19.1 of the Ironworkers agreement which provide as follows:
14(b) If a jurisdictional dispute arises on any job between the Party of the Second Part and any other Building Trades Union that is affiliated with the AFL-CIO Building and Construction Trades Department, same shall be settled by submitting the dispute immediately to the Impartial Jurisdictional Disputes Board for a decision. The decision rendered by the Impartial Jurisdictional Disputes Board shall be recognized and immediately implemented and such decision shall be binding on all Parties to the dispute.
19.1 Any jurisdictional dispute between the Union and any other building and construction
trades union, that involves any work undertaken by an Employer, will in no way interfere with the progress and prosecution of the work. The parties agree to abide by a decision of the Impartial jurisdictional Disputes Board and/or the Ontario Labour Relations Board.
- The parties summarized the events that led to the instant complaint. A section 124 grievance, filed by the Millwrights, was deferred to allow Copper Cliff to apply to the Plan for Settlement of Jurisdictional Disputes in the Construction Industry (the "Plan"). Copper Cliff applied to the Plan for a resolution of the dispute. The jurisdictional dispute process was started in accordance with the rules of the Plan when the General President for the Ironworkers advised the Acting Administrator of the Plan that the job had been completed prompting a letter from the Plan's Administrator to the parties, dated August 14,1987, stating in part:
"If the information contained in this telegram is accurate and the disputed work has been completed, there would appear to be no necessity for further action in this jurisdictional dispute".
It is the position of the Millwrights that the Ironworkers and the Company elected to go to Washington and thereby deprived the Board of any jurisdiction to hear this matter under section 91(14). The fact that the Plan, once it had been advised that the job was completed, did not make a determination of the correctness of the assignment, does not give the Board jurisdiction to hear this dispute.
Counsel for the Ironworkers acknowledged that the dispute was referred to the Plan. The Ironworkers did not contest the applicability of section 91(14), but did argue that upon the issuance of the Plan's August 14, 1987 letter there is no longer a clause in either collective agreement which provides for a resolution of the matter, and since the Plan was unwilling or unable to entertain the jurisdictional dispute, the Board can now take jurisdiction and hear this matter under section 91.
The Ironworkers further argued that there is a distinction between an "employer that has entered into a collective agreement" and one who is bound by statute to a provincial agreement and therefore Copper Cliff should be able to have its work assignment dispute determined on its merits by the Ontario Labour Relations Board.
Counsel for Copper Cliff submits that once the Ironworkers wanted to go south (the Plan) it had no choice, under its collective agreements, but to refer the dispute to the Plan. It is the company's position that everyone agreed that underlying the grievance is a work assignment dispute. The company submits that as long as this dispute could be dealt with by referring it to the Plan, the Board is deprived of jurisdiction under section 91(14). However, once the dispute cannot be resolved by the Plan, counsel for Copper Cliff submits that there is no impediment to the Board hearing this matter under section 91. It is Copper Cliffs position that it should not be at risk twice and that the Board has jurisdiction to deal with this application.
Without setting them out in detail, the Board has carefully considered all of the submissions of the parties and the cases cited in support of their positions.
Section 91(14) makes it clear that the Board does not have jurisdiction when the parties have provisions in their collective agreements requiring work assignment disputes to be referred to a mutually selected tribunal. In the instant case, the Millwrights' grievance was deferred at the request of the company and Ironworkers to permit an application for resolution of the dispute to the Plan in Washington. The question put before the Board is whether the fact that the Plan did not make a final determination of the correctness of the work assignment gives the Board jurisdiction to hear this matter under section 91.
As the Board has said on many occasions, whether or not the Plan, or its predecessor,
operates in a manner that is satisfactory to the parties, as long as collective agreements give this body jurisdiction to deal with jurisdictional disputes, and in the absence of specific wording such as found in the EPSCA agreement, giving the Board jurisdiction if after 60 days the Plan "fails to render a decision", section 91(14) deprives the Board of jurisdiction.
The Plan dealt with the jurisdictional dispute in accordance with its rules. One of these rules is a time limit. It should not surprise anyone in the construction industry that the Plan will not make determinations of the correctness of a work assignment when the specific work is completed. This rule has been in effect for many years, both under the present Plan and under its predecessor. The application of the time limit does not mean that the Plan has not dealt with or entertained the jurisdictional dispute. The Plan dealt with this particular work assignment dispute in accordance with its long-established rules. Section 91(14) of the Act is not discretionary and is specifically designed not to interfere with the private arrangements of the parties, even when they are less than satisfactory. Since the Plan is functioning, although with unsatisfactory results for two of the parties to this dispute, there is no basis for the Board to assume jurisdiction under section 91(1) of the Act.
Employers find themselves in a difficult position when caught between competing jurisdictional claims of two or more unions, especially when the employer becomes automatically bound to provincial collective agreements pursuant to section 145(4) of the Act. However, section 91(14) does apply to parties who have become bound to collective agreements entered into by the employer and employee bargaining agencies ("EBAs"). The Board has stated on many occasions that it is open to the EBAs to negotiate wording in their collective agreements which would better serve the parties in solving their jurisdictional disputes.
For the above reasons, the Board finds it does not have jurisdiction under section
91(14) to hear this complaint, and it is therefore dismissed.